Aggravating and Mitigating Factors
| Author | Allan Manson |
| Pages | 130-161 |
CHAPTER
7
AGGRAVATING
AND
MITIGATING
FACTORS
A THE
ROLE
OF
AGGRAVATING
AND
MITIGATING FACTORS
The
traditional Canadian amalgam approach
to
sentencing requires
the
judge
to
reflect
all
relevant objectives while emphasizing
any one
that
is,
in the
circumstances, predominant.
It
also encompasses
an
important
role
for
mitigating
and
aggravating
factors.
Generally,
the
nature
of the
offence
will
provide
a
good indication
to the
court about whether
to
consider
the
punitive objectives
of
denunciation
and
deterrence. These
objectives
may
appear appropriate
as the
inherent
gravity
of the
offence
increases. Issues
of
rehabilitation
and the
impact
of, or
need for, inca-
pacitation
are
reflected
in the
individual
characteristics
of the
offender.
The
potential
for
reparation
or
restoration raises questions about
the
victim
and the
community,
and a
potential
relationship
for the
offender
in
that context.
The
circumstances
of the
case
may
highlight certain
objectives
but
regardless
of
that
focus,
section
718.2(e)
of the
Criminal
Code
requires
the
judge
to
consider
all
available sanctions that
are
rea-
sonable. Proportionality
and
parity
are
important considerations
as are
recent
sentencing practice
and any
appellate guidelines
for
similar
offences.
As the
judge begins
to
narrow
the
decision
to a
range
of
begins
options
and
begins
to
consider questions like quantum,
the
presence
of
mitigating
or
aggravating
factors
becomes
the
lever that
shifts
the
bal-
ance
toward
one
option
or
another,
up or
down
a
quantum range.
In
great
measure, they
fine-tune
the
sentencing decision.
130
Aggravating
and
Mitigating Factors
131
Section
718.2(a)
now
entrenches
the
common
law by
requiring
judges
to
increase
or
reduce
a
sentence
by
taking into account aggra-
vating
or
mitigating circumstances relevant
to the
offence
or the
offender.
The
Criminal
Code
lists
a few
examples
of
aggravating cir-
cumstances, some
of
which
were clearly
encompassed
by the
common
law
and
others which were applied previously
but not
without contro-
versy: curiously, there
are no
examples
of
mitigating
factors.
However,
over
the
years,
the
common
law has
recognized
dozens
of
factors
which
can
have
a
mitigating
or
aggravating
effect.
In the
following dis-
cussion, most available
factors
are
included with authorities
and
some
consideration
of
their underlying rationale. Aggravating
and
mitigating
factors
are
often
taken
for
granted
in the
sense that courts rarely debate
their
applicability
or
premises.
For the
most part,
the
underlying pre-
mises which explain
the
applicability
of an
aggravating
or
mitigating
factor
relate
to two
large categories:
1.
The
gravity
of the
offence
in
terms
of the
culpability
of the
offender
and
the
consequential harm which
was
caused;
and
2.
The
ways
in
which character, past conduct,
and
post-offence
con-
duct implicate
a
particular objective
of
sentencing.
The
second category involves
the
presence
or
absence
of
factors
which
either diminish
or
enhance
the
significance
of a
relevant sentencing
objective.
In
other words, they
may
relate
to
rehabilitative prospects,
the
context
for
re-integration,
the
relevance
of
individual deterrence,
and the
utility
of
specific
options
or
conditions. This includes
the
amorphous
set of
factors
represented
by the
ledger
of
pro-social con-
duct which courts take into account
in
mitigation.
B.
MITIGATING FACTORS
1)
First
Offender
The
status
of
being
a
first
offender
is a
significant mitigating
factor.
The
fact
that
the
offender
has not
been
found
guilty
by the
criminal process
before
generates
a
number
of
favourable inferences, with rehabilitative
prospects always
at the
forefront
of
consideration. First, being
a
first
offender
suggests that
the
conviction
itself
constitutes
a
punishment.
It is
assumed that
the
offender
will
respond
positively
to the
deterrent
effects
of
the
process
of
arrest, charging, finding
of
guilt,
and
imposition
of
sanction.
This discounts
any
special need
for
individual deterrence
and
suggests that
a
lenient response
is in
order.
Being
a
first
offender
is
also consistent with
132 THE LAW OF
SENTENCING
demonstrating
good character prior
to the
offence.
Although
it
does
not
guarantee
a
non-custodial sentence, there
is
both
a
presumption against
custody
and a
significant reducing
effect
if
custody
is
mandated.
2) No
Prior
Record Advanced
Occasionally,
a
case will
go
forward
with
no
record
of
previous convic-
tions being advanced even though
a
previous conviction exists.
It may
be
unrelated
or
stale. Regardless,
defence
counsel should
be
careful
not
to
characterize
the
offender
as a
"first
offender"
if she is
not.
Still,
the
judge
who
deals with
a
case where
no
mention
is
made
of any
prior
record
must treat
the
offender
as if she is a
"first
offender."
3)
Prior
Good Character
Good-character
evidence during
a
trial when responsibility
is at
stake
is
usually
limited
to
reputation
in the
community.
For
sentencing purposes,
character
is
much broader
and
will
often
include achievements
and
opin-
ions attributed
to
relatives,
friends,
associates,
and
acquaintances.
It is
usually directed
to
showing that
the
offence
is out of
character.
In
this
way,
evidence
of
conduct which shows values antithetical
to
those which
ordinarily
underlie
the
particular
offence
will
be
helpful.
Accordingly, evi-
dence
of
honesty
and
generosity will
be
relevant
to a
crime
of
dishonesty.
Similarly,
evidence
of
compassion will
be
relevant
to a
crime
of
violence.
Claims
of
prior good character
are
often
misconceived.
For
exam-
ple,
it is
often
confused
with
a
claim about standing
in the
community.
While
this
is
often
put
forward,
it has a
nebulous
and
questionable basis
as a
mitigating
factor,
more
suited
to
showing
re-integrative
potential.
For
some
offences,
evidence
of a
person's pro-social community com-
mitment through volunteer work
is not
mitigating when
the
offence
arises
from
those activities. Assaulting children involved
in the
volun-
teer
activity
is an
obvious example.
In
general, courts have
found
that
good-character claims
are
inappropriate
when
dealing with
offences
committed
in the
dark corners
of
people's lives.
With
respect
to
sexual
offences,
the
Supreme Court
has
recognized
that they
are
usually perpe-
trated
in
private,
out of
sight
and
knowledge
of
friends
and
associates.
Accordingly,
evidence
of
good community reputation
has
little proba-
tive
value.1
While
this
conclusion
was
directed
to the use of
character
evidence
at
trial,
it
applies equally
to
sentencing issues.
1 See R. v.
Pro/it,
[
1993]
637, accepting
the
dissent below
of
Griffiths
J.A.
at
(1992),
11
O.R. (3d)
98
(C.A.).
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